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Moye v. Commissioner of Correction

Court of Appeals of Connecticut

September 13, 2016

JOHN MOYE
v.
COMMISSIONER OF CORRECTION

          Argued April 11, 2016

         Appeal from Superior Court, judicial district of Tolland, Fuger, J.

          April E. Brodeur, assigned counsel, for the appellant (petitioner).

          Emily D. Trudeau, deputy assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and Prescott, Js.

          OPINION

          PRESCOTT, J.

         The petitioner, John Moye, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal, and improperly (1) determined that his criminal trial counsel had not provided ineffective assistance by failing to request a sequestration order, (2) violated his right to due process by failing to review all of the evidence admitted at the habeas trial, and (3) refused to issue a capias for an absentee witness.[1] Having thoroughly reviewed the record, we conclude that the habeas court properly denied the petition for certification to appeal. Accordingly, we dismiss the appeal.

         The following facts, as set forth by this court on direct appeal or as found by the habeas court, and procedural history are relevant to this appeal. ‘‘On the evening of April 30, 2005, after Clarence Jones, the victim, asked him for a ride, Jerry Booker picked up Jones, Roderick Coleman and the [petitioner]. The group briefly stopped at Booker's house in West Haven and then proceeded to the Ebony Lounge in New Haven. Coleman and the [petitioner] went inside for approximately fifteen minutes, while Booker and the victim waited in the car. When Coleman and the [petitioner] returned to the car, Coleman asked Booker to drive to the Pleasant Moments Cafe in Bridgeport, where his girlfriend worked as a dancer.

         ‘‘Upon arriving at Pleasant Moments Cafe, Booker, Coleman and the victim entered the club while the [petitioner] stayed in the car. The three men who went inside the club were searched for weapons before they were allowed to enter. When Pleasant Moments Cafe closed for the night, Booker, Coleman and the victim emerged from the club with Tamara Wilson, Coleman's girlfriend, Tawana Little and a third woman by the name of Jada. They all got into Booker's car. Booker was the driver, the victim and Jada rode in the front passenger seat, the [petitioner] sat behind Booker, Little was seated next to him, and Wilson sat on Coleman's lap behind the front passenger's seat.

         ‘‘Booker next drove to a nearby gasoline station. Booker, the victim and Jada got out of the car and entered the gasoline station. With the two men and Jada out of the car, the [petitioner] began telling the other passengers about his belief that Booker and the victim planned to rob him. He said that he was going to ‘act up.' Those who went into the gasoline station returned to the car, and the group left the gasoline station to drop off Jada.

         ‘‘As Booker was driving to Jada's house, his cellular telephone rang. He answered the telephone and handed it to the victim when he realized that it was the victim's mother calling. Then a loud bang came from the backseat. The victim's mother heard someone say: ‘Call 911. He's been shot.' The [petitioner], holding a gun, ordered everyone to get out of the car. Booker and Jada got out of the car, the [petitioner] got into the driver's seat, pushed the victim's body out of the car and drove away.

         ‘‘After driving a short distance, the [petitioner] stopped the car, wiped down the steering wheel and car handles, and exited the car with Little, Wilson and Coleman. The group got into a taxicab and went to Little's house in New Haven. Once at Little's house, the [petitioner] again told the others that he believed that he was going to be robbed and that was why he shot the victim. He told Little that he had tried to shoot the victim in the face and also told Little and Wilson that they should ‘take it to the grave.'

         ‘‘The [petitioner] was arrested on May 20, 2005. He was found in a house in Stamford, lying across the seats of several chairs under a dining room table. The [petitioner] was charged with murder, carrying a pistol without a permit and criminal possession of a pistol. He was found guilty of murder and carrying a pistol without a permit, and entered an Alford[2] plea with regard to the criminal possession of a pistol charge.'' (Footnote added.) State v. Moye, 119 Conn.App. 143, 146-47, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638 (2010).

         The petitioner appealed to this court from the judgment of conviction. On direct appeal, ‘‘[he claimed] that (1) there was insufficient evidence to support his conviction of murder, (2) the [trial] court improperly instructed the jury on the murder charge, (3) the prosecutor committed reversible impropriety during the [petitioner's] testimony and (4) the court improperly canvassed the [petitioner] with regard to his Alford plea to the charge of criminal possession of a pistol. We [affirmed] the [petitioner's] conviction of murder and carrying a pistol without a permit. We reverse[d], however, [his] conviction of criminal possession of a pistol.'' Id., 145-46.

         Following this court's decision on direct appeal, the petitioner filed a petition for a writ of habeas corpus. In his third amended petition, the petitioner claimed that his trial counsel, Gary A. Mastronardi, rendered ineffective assistance by failing (1) to request a sequestration order for witnesses, (2) to object to certain testimony by the state's firearms examiner, and (3) to file a motion in limine to preclude testimony from the victim's mother.[3]

         In regard to his claim that Mastronardi rendered ineffective assistance by failing to request a sequestration order, the petitioner alleged that if Mastronardi had requested a sequestration order, the state's witnesses, specifically, the eyewitnesses to the shooting and the victim's mother, would not have been able to corroborate falsely each other's testimony. According to the petitioner, because Mastronardi did not request a sequestration order that prohibited the state's witnesses from discussing their testimony, they were able to discuss and conform their testimony prior to testifying. As proof that the state's witnesses had discussed and tailored their testimony, the petitioner emphasized the testimony of Wilson, who, at the criminal trial, testified that she had ‘‘just found out [that the victim] was on the phone with his mother [at the time he was shot]. I didn't know that at the time . . . .'' (Emphasis added.) Subsequent to Wilson's testimony at the criminal trial, the victim's mother testified that at the time that the victim was shot, she was on the telephone with him. According to the petitioner, the victim's mother and Wilson discussed their testimony prior to either testifying in order to conform their testimony and, thus, falsely corroborate each other, which would not have occurred if Mastronardi had requested a sequestration order.

         On July 28, 2014, the court, Fuger, J., held a habeas trial, which lasted less than one full day. At the start of the habeas trial, both parties offered and had admitted without objection all of their exhibits. Following the admission of both parties' exhibits, the petitioner testified on his own behalf and then offered the testimony of Mastronardi. After Mastronardi's testimony, the petitioner requested that the court issue a capias for Wilson, who had not appeared at the habeas trial, although the petitioner had attempted to subpoena her. The court declined to do so. Both parties then rested and proceeded to make closing arguments. Immediately following closing arguments, the court issued an oral decision from the bench denying the petition.

         The court began its oral decision, the transcript of which it later signed and filed with the clerk of the trial court, [4] by stating that it had ‘‘read the petitioner's pretrial brief. I have not read all of the transcripts that have been provided. I don't know that it is necessary to do so.'' The court then determined, inter alia, that the petitioner had not established that Mastronardi's failure to request a sequestration order constituted deficient performance. The court also found that the petitioner had failed to establish that he was prejudiced by Mastronardi's actions, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         On August 5, 2014, the petitioner sought certification to appeal to this court, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

         Prior to addressing the petitioner's claims on appeal, we set forth the applicable standard of review. ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

         ‘‘To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'' (Internal quotation marks omitted.) Riddick v. Commissioner of Correction, 113 Conn.App. 456, 459, 966 A.2d 762, appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011). ‘‘In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous.'' (Internal quotation marks omitted.) Taft v. Commissioner of Correction, 159 Conn.App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015).

         I

         The petitioner first claims that the court improperly determined that Mastronardi had not rendered ineffective assistance by failing to request a sequestration order. Specifically, the petitioner alleges that Mastronardi's failure to request a sequestration order constituted deficient performance because his conduct was not reasonable given the importance of eyewitness testimony in this case. We are not persuaded.

         The following additional facts and procedural history are relevant to this claim. At the underlying criminal trial, neither Mastronardi nor the state requested a sequestration order. Wilson, who was in the vehicle with the petitioner at the time that the victim was shot, testified at the criminal trial. During cross-examination, Mastronardi asked Wilson if the victim was on a cellular phone at the time of the incident. Wilson responded: ‘‘From my knowledge, I just found out he was on the phone with his mother. I didn't know that at the time cause he had drugs and I wasn't all in his face. So, I didn't know what he was doing at that time. I just know he was sitting there.'' Mastronardi had Wilson's entire response stricken from the record as unresponsive, and the jury was instructed to disregard Wilson's statement.

         The following colloquy then ensued between Wilson and Mastronardi:

‘‘Q. You never told the police about [the victim] being on a cell phone?
‘‘A. No. . . .
‘‘Q. You just told the jury a few minutes ago that you found out that [the victim] was on a cell phone. Is that right? . . . Yes or no.
‘‘A. Yes.
‘‘Q. And you found that out from [whom]? The prosecutor?
‘‘A. No. I'd rather not say. It don't matter.
‘‘Q. Well, somebody had to tell you something ...

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